Talukder Soma v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1656/2019

[2022] HKCFI 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1656 OF 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and the Applicant being absent in open court.

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant entered Hong Kong on 19/3/2015. She was under a contract as a domestic helper. Her contract was terminated on 23/4/2015. She overstayed since 8/5/2015. She was arrested by the police on 4/12/2015. She then lodged the non-refoulement claim in this case on 6/12/2015.

Background

2.The applicant was born on 3/6/1985 in village Boltoli, Chittagong, Bangladesh. She had education for 14 years. She was single and a Hindu. Her family lived in Bangladesh. She was a nurse from 2011 to 2013. She had no association in any political group in Bangladesh.

3.One day in June 2013, her father told her, on the phone, not to return home during the weekend. Later, her father told her that some Awami League (“AL”) people had come to her home and threatened her father to join the AL. They would take her away if her father refused.

4.Her father decided that she should leave Bangladesh for her safety. In October 2013, she was trained as a domestic helper in Tangail before coming to Hong Kong. She was safe at the training center. During that period, the AL members came to her home and asked about her. They threatened her father again. They demanded that she be sent to their office to join AL.

5.She completed a 3-month-training but stayed at the center until March 2014. She had not personally encounter any AL people. She left Bangladesh without any problem. She did not apply for protection immediately as she came to Hong Kong to work as a domestic helper only.

6.She returned to Bangladesh for medical treatment in January 2015. She stayed away from home at another village with her aunt. She stayed until 19/3/2015 and left for Hong Kong. She believed that she was targeted because Muslims targeted Hindu women. Her family was not harmed in Bangladesh.

7.She overstayed in Hong Kong after her contract was terminated.She last contacted her father in June 2018. Her father was safe. The AL people were still looking for her. She thought her father held back the information to avoid bothering her.

8.She thought it would be useless to report to the police as they were influenced by the AL. They were corrupt. The officials would not protect Hindus. She did not think there was State protection. She could not relocate as Hindu women could be easily identified.

9.She feared that the AL people would harm or kill her if she returned to Bangladesh.

The decision of the Director

10.The Director found that there was no real risk of harm by the AL people for the following reasons:[1]

a.     There was no physical violence or threat to her personally. In all incidents when they threatened her father, she was not there nor was she located.

b.     She never had trouble with the AL people in the past years in her home village. It was inexplicable why they suddenly targeted her. She had no political affiliation and had never been active in politics. There was no reason for the AL people to force her to join AL.

c.     There was no evidence that the AL people had been tracing her in the vicinity of the home village. She had never encountered any of them personally. She only learned about the threat from her father.  

d.     She was safe in Tangail for at least 6 months before leaving the country. She was not located by the AL people. Her family was not harmed. This was contradictory to the assertion that the AL people were powerful.

e.     She did not report to the police. There was no evidence that the police would refuse to assist or condone the conduct of the AL people.

f.     Having considered various COI, the Director acknowledged that the police were corrupt and failed to enforce the law. However, the government had been taking steps to improve professionalism and reduce corruption. The PRP[2] was a continuous program to improve awareness in human rights and accountability. There were news reports revealing that the police had been taking action against AL lawmakers when they committed offences. There were complaint channels to higher authorities if a police officer refused to assist. The Bangladesh Police Portal emphasised quality service to citizens making Bangladesh a better and safer place. Citizen would be treated equally in the eyes of the law. The ACC[3] was established to promote strong anti-corruption culture in the society. The NLASO and BLAST were set up to provide legal aid and services.[4]

g.     The law in Bangladesh allowed freedom of movement within the country. Bangladesh was a large country and the population was over 157 million. Given her age and background, she should be able to relocate to Dhaka and Khulna. It would be very difficult for the AL people to locate her.

11.The Director rejected her claim on 9/8/2018.

The decision of TCAB

12.The applicant attended a hearing on 13/3/2019 before the TCAB. The adjudicator pointed out the following aspects which undermined the applicant’s credibility:

a.     The applicant told the adjudicator that there were threats from the AL people when she was in nurse training school which was in 2007. However, in her NCF, it was in June 2013 that her father told her about the AL threats. Even if there were threats in 2007, her family was safe at the home village and the threat was never acted upon.

b.     She mentioned in the Notice of Appeal that she encountered problems with the AL people when she was young. However, no harm was caused to her and her family in the years before this incident.

c.     She admitted it was falsely stated in the Notice of Appeal that her family had to live at different places. She admitted that it was written by a friend in case she forgot what to say.  

d.     The applicant and her family had never been harmed. There was no evidence that she had been ill-treated because of any Convention reasons.

e.     The assertion of the applicant did not support any ill-treatment which attained a minimum level of severity. There was no substantial ground for believing that she would face a genuine and substantial risk of harm.

f.     The applicant could leave Bangladesh without any problem. There was no official involved. She had not suffered any torture within the definition under s.37U of the Ordinance.

g.     There was no evidence that her life would be arbitrarily deprived if refouled.

13.The adjudicator rejected the applicant’s claim on 13/6/2019.

Judicial review

14.The applicant filed the leave application for judicial review on 17/6/2019. In her affirmation in support, she stressed that her life was under threat in Bangladesh. Her enemies were the AL members. She disagreed with the decisions of the TCAB and the Director.

15.In her affirmation dated 17/6/2019, she pointed out that the hearing bundle was served on her a few days before the TCAB hearing. She was unable to understand the documents as they were in English.  She could not find any interpreter.  She did not understand the hearing. However, she had answered questions honestly but was disappointed to be found not credible. 

16.The 3 significant documents in the hearing bundle were the Director’s decision, the record of interview before the Director and the NCF.  The latter 2 documents were made with the assistance of an interpreter.  The Director’s decision must have been explained to her by the DLS.  The applicant should have no difficulty understanding all of them.  Her form 86 and affirmation were in typewritten English.  This demonstrates that she was able to find language assistance. 

17.During the TCAB hearing, the adjudicator explained the procedures to her. She confirmed that the information in the NCF and the Interview was correct. The applicant clarified matters raised by the adjudicator. She had no complaint during the TCAB hearing.[5]

18.Had she felt confused in the TCAB hearing, she should have raised it with the adjudicator. There was no record of any complaint.

19.The adjudicator did not rely on any news reports. The adjudicator found that there were serious inconsistencies in her evidence and rejected her claim. It was the Director who pointed out some news reports which were from Dhaka Tribune and BDnews24.com. There was no information that these were unreliable news agencies. It was an allegation without actual evidence from the applicant. In any event, they were cited to corroborate the COI. They were not the sole sources to support reasonable State protection.

20.Both the Director and the TCAB had assessed the BOR 2 risk based on the evidence. The assertion that the Director had not screened BOR 2 risk was wholly unfounded.

21.This court fixed a hearing on 25/10/2021. The applicant was absent. The notice of hearing was sent to her last updated address. There was no return of mail. This court deals with the leave application on paper.

22.In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

23.The adjudicator had analysed her evidence in detail. There are critical inconsistencies which seriously undermined her credibility. I agree with the findings of the adjudicator. In fact, there was no injury caused to the applicant. There was no persecution. Her story is unconvincing.

24.In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.

Conclusion

25.The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated 5^th day of January 2022

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1